ABS: What Horrors Within?

Canadian Bar Association National Magazine, December 4, 2014.

“Professor, I was wondering if you could tell us anything about the Chamber of Secrets,” said Hermione in a clear voice… “What exactly do you mean by the ‘horror within’ the Chamber?”

“That is believed to be some sort of monster…” said Professor Binns in his dry, reedy voice.

-J.K. Rowling, Harry Potter and the Chamber of Secrets

An alternative business structure (ABS) is a law firm that includes non-lawyers as investors, managers, or partners. Such arrangements are effectively forbidden throughout Canada today. However prominent voices, such as the CBA Legal Futures Initiative, are now calling for regulators to roll back these rules and welcome ABS firms to our legal landscape.

A future with ABS is a chamber of secrets, rumoured to contain both glittering treasures and savage monsters. The treasures may include enhanced access to justice for clients,and new innovation and flexibility for legal professionals. The value of these treasures cannot be known unless and until we roll back the regulation currently blocking the entrance to the chamber.

However many are reluctant to do so, because two monsters are also said to reside in the chamber. One of these beasts, it is said, eats legal ethics by corrupting lawyers. The other allegedly eats lawyers themselves, by stealing their clients.

While the treasures in the chamber are uncertain, the two monsters are entirely figmentary. Our regulators therefore have nothing to lose–and possibly a great deal to gain—from opening the door to alternative business structures

Full text here.

 

The Cost of Seeking Civil Justice in Canada

(2016) Canadian Bar Review, Vol. 93.3, pp. 639-673.

How much does it cost individual Canadians to seek civil justice? This article compiles empirical data about the monetary, temporal, and psychological costs confronting individual justice-seekers in this country. The article then suggests that analysis of private costs can improve access to justice in two ways. First, it can help public sector policy-makers to reduce these costs. Second, it can help lawyers and entrepreneurs to identify new, affordable ways to reduce the costs that are most onerous to individuals with different types of civil legal need.

Online: https://cbr.cba.org/index.php/cbr/article/view/4358

This research was the subject of an article in the Canadian Bar Association National Magazine. Online: CBA National Magazine. Link here.

Legal Services Regulation At The Crossroads: Justitia’s Legions

(2015) Edward Elgar Press, 308 pages.

Available now Edward Elgar Press in hardcover and as an affordable e-book .

A must read for everyone in North America who is making decisions on regulatory change to the legal services industry.” (Mitch Kowalski’s review in the Financial Post)

Through a comparative study of English-speaking jurisdictions, this book seeks to illuminate the policy choices involved in legal services regulation as well as the important consequences of those choices. Regulation can protect the interests of clients and the public, and reinforce the rule of law. On the other hand, legal services regulation can also undermine access to justice and suppress innovation, while failing to accomplish any of its lofty ambitions. The book seeks a path forward to increasing regulation’s benefits and reducing its burdens for clients and for the public. It proposes a client-centric approach to enhance access to justice and service quality, while revitalizing legal professionalism, self-regulation, and independence.

Personal Plight Legal Practice and Tomorrow’s Lawyers

(2014) Journal of the Legal Profession, Vol. 39, pp. 25-47.

Commentators have predicted that computerization and off-shoring will steadily undermine demand for lawyers in North America and Europe. This essay argues that this prediction is not equally valid for all types of legal practice. Personal plight practice — in which lawyers help individuals and small businesses involved in legal disputes — is largely sheltered from both computerization and off-shoring. The article calls for the profession and legal educators to open doors between tomorrow’s lawyers and personal plight legal practice. Doing so will not only address the economic insecurity confronting tomorrow’s lawyers, but also enhance access to justice.

This article was the basis of a December 12, 2014 post at the Canadian Association of Law Teachers blog.

Full article found online here.

Dealing with Climate Change “Losers.”

The Windsor Star, July 15, 2014.

Full text: http://blogs.windsorstar.com/opinion/dealing-with-climate-change-losers

How can politicians move climate policy forward?  “Dealing with losers” is a big part of the answer.

Last month, Stephen Harper joined the other G7 leaders in calling for “urgent and concrete action” to address climate change. We should expect our Prime Minister to take climate change seriously, because it’s probably the gravest long-term threat to Canada’s security and prosperity. Here in Windsor, heat waves and declining water levels are among the serious problems partially attributable to global warming.
President Barack Obama has mandated significant reductions from the leading sources of greenhouse gas emissions in his country. Will Prime Minister Harper be able to do likewise with Canada’s oil and gas sector, and with consumers’ transportation and home energy emissions?

A new book from Professor Michael Trebilcock, of the University of Toronto, can help our Prime Minister do so.  In Dealing with Losers: the Political Economy of Policy Transitions, Trebilcock shows that even the wisest policy changes create “losers.”  The key message of the book is that leaders must mitigate the opposition of those who stand to lose from policy change. Trebilcock proves this with examples from fields like public pension reform and agricultural supply management, in addition to carbon pollution control.

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A Taxonomy of Lawyer Regulation

by Noel Semple, Russell Pearce, and Renee Knake

Legal Ethics, Vol. 16, No. 2, pp. 258-283(2013) (published 2014).

Full text: http://ssrn.com/abstract=2396041

What explains the dramatic contrast between legal services regulation in the United States and anglophone Canada, on one hand, and England/Wales and Australia, on the other? In order to help explain these divergent regulatory choices, and to further comparative analysis, this Essay proposes a taxonomy of theories of legal services regulation drawn from these common-law jurisdictions.

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Depending on the Kindness of Strangers: Access to Civil Justice in Canada

(2013) Legal Ethics, Vol. 16, No. 2, pp. 373-376.

‘Abysmal’ was the word used to describe the accessibility of Canadian civil justice in a recent major report. Access to justice is simultaneously a social problem, a professional obligation for the legal profession, and a market opportunity for law firms. Are there any signs of significant progress on any of these fronts? This short Correspondent’s report will review recent Canadian efforts to connect people of modest means with the expert legal services they urgently need.

Full text: http://ssrn.com/abstract=2385989

Reforming Ontario’s Family Justice System: An Evidence-Based Approach

by Noel Semple and Nicholas Bala

(2013) Report commissioned by the Association of Family and Conciliation Courts, Ontario Chapter. 20,000 words.

Full text: http://afccontario.ca/wp-content/uploads/2015/11/Semple-Bala-Family-Justice-Reform.pdf

Also available at: http://ssrn.com/abstract=2366934

 

This Report summarizes research about justice system responses to family disputes, makes recommendations for government action based on that empirical evidence, and identifies some as yet unanswered system design questions requiring further study. This document is provocative as it is premised on a realistic appreciation of the nature of family disputes and the limits of government action, especially in the present fiscal environment, and the fact that there are issues related to family justice that research has not adequately addressed and hence development of public policy must be undertaken in the face of uncertainty. Continue reading

Access to Justice: Is Legal Services Regulation Blocking the Path?

(2013) International Journal of the Legal Profession, Vol. 21, No. 2, pp. 267-283 (Peer-reviewed).

Is legal services regulation exacerbating North America’s access to justice crisis? Does regulatory preservation of a unified legal profession, and insulation of that profession from non-lawyer influence, make it more difficult for Americans and Canadians to meet their legal needs? This article begins by showing that high prices and lack of innovation have placed expert legal services beyond the reach of many people in English-speaking North America. It then develops a theory of how these problems might be compounded by two distinctive features of legal services regulation in this region: unification of the legal profession, and insulation of law firms from non-lawyer investment and leadership. Comparisons are drawn with England & Wales and Australia, jurisdictions which have significantly liberalized their legal services regulatory regimes. The article concludes that, although regulatory liberalization is not a magic bullet for the accessibility of justice, there is strong evidence of a link between regulation and access. North American lawyer regulators need to understand and work to reduce the effects of their policies on the accessibility of justice.

Full text: http://ssrn.com/abstract=2303987

Core Values: Professionalism and Independence Theories in Lawyer Regulation

Working Paper, May 13 2013

North America is the common law world’s last bastion of traditional lawyer self-regulation. In the United States and in common law Canada, lawyers make and enforce almost all of the rules which govern legal service delivery. These regulatory regimes are also distinctive in their (i) maintenance of a single, unified occupation of lawyer, (ii) insulation of law firms from non-lawyer ownership, and (iii) near-exclusive regulatory focus on individual lawyers as opposed to law firms. Other wealthy English-speaking countries (the UK, Ireland, Australia and New Zealand) have gradually abandoned all of these elements of traditional lawyer regulation over the past 40 years.

Why have North American lawyers and legislators resisted such reforms and maintained traditional self-regulation? One school of thought is that lawyers have defended traditional self-regulation in order to protect their own interests. However, North American lawyers supported by functionalist sociologists respond that traditional self-regulation protects the interests of clients and the public by upholding important core values. This article seeks to elucidate this public interest theory, through a new reading of the legal and sociological literature. The thesis is that professionalism and independence are the two allied but conceptually distinct core values which animate the public interest theory of traditional lawyer regulation.

Online: SSRN, http://ssrn.com/abstract=2262518

The Settlement Mission in Custody and Access Cases

(2013) Working Paper.

This article reports on empirical research into family justice system workers, and their approach to child custody and access cases.  The child custody evaluators whom the author interviewed have formal roles that appear to require analytical decision-making about the best interests of children.  However, the central finding of this research is that these professionals are actually pursuing voluntary settlement between the adult parties as their primary goal.  This article then proposes an explanation for this observed phenomenon, based on the evolution of custody and access law and procedure over the past 30 years.  The rise of the “logic of durability” seems to offer a convincing explanation for the concerted pursuit of settlement among both child custody evaluators and judges.

Online: SSRN, http://ssrn.com/abstract=2101819.

The Settlement-Seeking Judge: A Mock Trial

Fall 2013 (Published 2014), Journal of Dispute Resolution, Vol. 2013, No.2, pp. 301-329.

Judicial dispute resolution is common in family courts, where it usually consists of informal efforts to bring about settlement in pre-trial conferences. Many judges are especially eager to promote settlement in child custody and visitation (access) cases. This paper will critically evaluate informal JDR in parenting disputes, by asking whether and to what extent it is in the best interests of the children involved. It begins by identifying several features which distinguish custody and access disputes from other types of civil litigation, and which are relevant to the normative analysis of JDR in this context.

The paper then describes and evaluates three arguments which might be made against informal JDR in custody and access.  First, one might argue that there is too much settlement and not enough neutral adjudication of civil cases in general, or of parenting cases in particular. Second, one might applaud settlement in these cases but say that the efforts of the justice system to encourage it are ineffectual or inappropriate. Third, one might approve of settlement-seeking by the justice system in custody and access cases, but maintain that the system’s reliance on judges to do this work is mistaken.

The first two arguments can be rejected , but the author argues that the third has substantial merit. This paper will conclude by arguing that facilitative mediation by non-judges appears to have significant advantages over judicial settlement-seeking as a way to resolve custody and access cases without adjudication. Assigning settlement-seeking to facilitative non-judges could revitalize both settlement-seeking and adjudication in family court.

Online: Social Science Research Network, http://ssrn.com/abstract=1898629.

A version of this article also appears as a chapter in Tania Sourdin & Archie Zariski, eds., The Multi-Tasking Judge: Comparative Judicial Dispute Resolution.  Sydney: Thomson Reuters, 2013.